Romney turns to AG for halt to licensing

Governor Mitt Romney yesterday asked the state attorney general to stop municipal clerks from issuing marriage licenses to samesex couples from other states and said Massachusetts would refuse to officially record the licenses of those couples who do not intend to live here.

Romney sent Attorney General Thomas F. Reilly copies of the license applications of 10 out-ofstate same-sex couples who sought marriage licenses in Provincetown and Springfield this week and asked Reilly to take steps to prevent the clerks from issuing licenses to such couples in the future.

Over the next several days, Romney will forward Reilly the names of nonresident couples given license applications in Worcester and Somerville, two other communities where clerks announced their intention to welcome all comers.

Romney said he expected Reilly to urge the clerks to stop issuing the licenses with calls and letters at first. If that does not work, Romney said, a court injunction might be warranted.

But Reilly refused to say whether he would agree to the governor’s request. Reilly, a likely Democratic opponent to Romney in 2006, said, “We have an awful lot of other things going on, so we’ll deal with this as it comes.”

Reilly repeatedly stressed that under Massachusetts law, the governor has the power to prosecute all matters related to marriage without the help of the attorney general. "I want to recognize here and acknowledge that the governor of Massachusetts has special authority and jurisdiction when it comes to the regulation of the issuance of marriage [licenses], and enforcement of the marriage laws and process," Reilly said. "I certainly understand that authority, and I respect that authority. We will take it in that context."

Romney said he has spoken to Reilly personally and that the two officials are "on the same page."

"We all have the same interests," Romney said. "To make sure the law is carried out."

Outlining his legal strategy at a news conference yesterday, the governor said he does not intend to punish the clerks or the couples. He said his aim is to avoid the "export" of same-sex marriage to other states by restricting licenses to gay couples who live in Massachusetts.

However, he also said he would take steps that could make it impossible for out-of-state gay couples to claim many of the benefits associated with marriage. The state registrar, he said, would refuse to record the marriages of the 10 out-of-state residents he identified and all those others who state on their applications that they have no intention of moving here. That step, he said, renders their marriages automatically invalid under a 1913 law that voids Massachusetts marriages if they would be void in the state in which a couple resides.

"He can use whatever tools he has on hand to remind the clerks of their obligations to carry out the law," Romney said of Reilly."I don't expect there would be any kind of punitive effort on [Reilly's] part. I would expect a corrective effort, where he would use the tools he has to ensure the elected officials, and particularly the appointed officials, are following the law as we understand it."

As Romney interprets the 1913 law, the same-sex marriages of couples from out of state are null and void because no other state in the union licenses them. Reilly sees the reach of that law differently: He has said that the marriages of out-of-state gay couples would be void only in the 38 states that have laws on the books specifically banning gay marriage.

The documents forwarded to Reilly were copies of 10 applications filed by residents of states that have no specific law banning gay marriage and those that do. Gay-marriage supporters have said that the governor and the attorney general are applying an archaic law inappropriately and unfairly, and are preparing to fight it in court.

The request ends weeks of speculation on what Romney would do to enforce a 1913 law after nearly a week of silence from the governor following his prominent role in the fight to block the beginning of legalized gay marriage in Massachusetts, which began Monday. With yesterday's move, he has lobbed the ball squarely into Reilly's court. Romney asked Reilly to seek, on his behalf, a delay in the May 17 start of those marriages earlier this spring, but the attorney general rebuffed him, saying the matter was settled.

Gay-marriage opponents urged Reilly to act.

"I certainly think there is merit in the governor calling the attorney general to action. Now the ball is in the attorney general's court," said Kristian M. Mineau, acting president of the Massachusetts Family Institute. "We have to see if he, who is supposed to uphold and support the law, is going to carry it out. I expect the attorney general to do his job in accordance with the constitution."

Supporters of gay marriage said they hoped Reilly would respond to Romney the same way now as earlier.

"We would urge the attorney general to reject the governor's invitation altogether, for a simple reason," said Mary Bonauto, civil rights project director of Gay & Lesbian Advocates & Defenders, which argued the Supreme Judical Court case that gave gays and lesbians the right to marry. "Massachusetts already allows heterosexual nonresidents to marry and it can't have a different rule for gay people. The governor is picking a fight here, by denying recognition of this legal commitment these people so joyfully assumed."

Yesterday Romney stressed that he would not move to punish out-of-state couples. Their marriages do "no harm to the Commonwealth," he said.

"The consequences of people not following the law unfortunately is falling on the couples that are entering into a relationship," Romney said. "The Commonwealth, I don't imagine, is planning to challenge those marriages. . . . It's instead down the road, where another state might challenge them, or an employer might challenge them, or one of the individuals [in] the marriage itself might challenge the relationship, and that's really unfortunate for those individuals."

With the state registrar not recording the licenses of couples who do not intend to live here, the couples will not hold a valid Massachusetts license, making it unlikely that they would have legal standing to fight for benefits.

According to the documents forwarded to the attorney general and obtained by the Globe under the state's Public Records law, the applications selected by Romney were filed by couples from Maine, Vermont, Ohio, New York, California, Rhode Island, Connecticut, and New Jersey.

Virginia Purcell, a Maine resident who arrived in Provincetown on Tuesday with her partner, Susan Elias, to apply for a marriage license, said she was troubled to hear that Romney had flagged the couple's application.

The parent of twin 7-year-old children, Purcell said she would gladly join a class-action lawsuit to make sure her marriage is acknowledged in Massachusetts. Only then, she said, could she fight to overturn Maine's Defense of Marriage Act. "Someone has to challenge the DOMA in the state of Maine," said Purcell.

Globe staff writer Frank Phillips contributed to this report.